Opinion
Civil Action Nos. 94-742(JBS), 94-2765(JBS), 97-1593(JBS)
Filed: June 27, 2000
Thomas B. Duffy, Esquire, Absecon, New Jersey, Attorney for Plaintiff.
Russell L. Lichtenstein, Esquire, Eileen Oakes Muskett, Esquire, Cooper Perskie April Niedelman Wagenheim Levenson, P.A., Atlantic City, New Jersey, Attorneys for Defendants.
OPINION
This matter comes before the Court on plaintiff David H. Morse's motion for reargument of this Court's March 27, 2000 Opinion and Order granting defendants' motion for partial summary judgment. The present Opinion incorporates the March 27, 2000 Opinion's recitation of the background of this case, which, in short, involves a diversity and federal question based civil rights suit between plaintiff David H. Morse and defendants Trump Plaza Associates ("Trump Plaza") and Trump Taj Mahal Associates ("Trump Taj Mahal"), whereby Morse seeks damages against defendants for their alleged deprivation of his rights when they removed him from the premises of their casinos and later prosecuted him for trespass and other charges.
In this Court's March 27, 2000 Opinion and Order, the Court granted defendant's motion for partial summary judgment against plaintiff's consolidated claims of malicious prosecution, false imprisonment, defamation, and violation of the New Jersey Consumer Fraud Act; denied plaintiff's motion in limine seeking to exclude all testimony and evidence tending to portray plaintiff as a card cheat; and required that plaintiff show cause why the sole surviving claim in this case, one of simple assault, should not be dismissed for lack of the requisite amount in controversy ($75,000) for diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) and Fed.R.Civ.P. 12(h)(1).
Morse has now moved for reargument of the Court's Opinion and Order granting defendant's motion for summary judgment against his malicious prosecution and false imprisonment claims pursuant to L. Civ.R. 7.1(g). Plaintiff contends that factual discrepancies and credibility issues in the certifications of Taj Mahal security agents Joseph Rauch, Clinton Seltzer, and Joseph Procopio are sufficient to compel the Court to reconsider its prior decision regarding his claims for malicious prosecution and false arrest. For the reasons discussed herein, plaintiff's motion for reargument will be denied.
A. Reargument Standard
Local Rule 7.1(g) requires that a motion for reargument shall be served within 10 days of the entry of the order or judgment on which reargument is sought. Such motions should be accompanied by a "brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." Id. "A party seeking reconsideration must show more than a disagreement with the court's decision, and `recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'" Panna v. Firstrust Savings. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) (quoting Carteret Savings. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989), appeal dismissed, 919 F.2d 225 (3d Cir. 1990), cert. denied, 506 U.S. 817 (1992)). As this Court has stated, "motions for reargument succeed only where a `dispositive factual matter or controlling decision of law' was presented to the Court but not considered." Damiano v. Sony Music Entertainment, 975 F. Supp. 623, 634 (D.N.J. 1996) (quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987)). Where no facts or cases were overlooked, such a motion will be denied, Egloff v. New Jersey Air Nat. Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Resorts International v. Greate Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992).
Plaintiff's motion for reargument was not filed within the ten day window for filing as established by L. Civ.R. 7.1(g). Defendants claim this as grounds for dismissal. However, the court explicitly granted plaintiff extension due to change of counsel, and the Court deems the motion timely.
If the record was inadequately developed on a particular issue, the court has discretion to reconsider the matter, Hatco Corp. v. W.R. Grace Corp., 849 F. Supp. 987, 990 (D.N.J. 1994), but not to the extent of considering new evidence that was available but not submitted while the motion was pending. Florham Park Chevron, Inc. v. Chevron, USA, Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). In other words, a "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). As the late Chief Judge Gerry noted, "[w]e are in fact bound not to consider such new materials, lest the strictures of our reconsideration rule erode entirely." Resorts International, 830 F. Supp. at 831 n. 3. (emphasis in original). Consequently, only when the matters previously presented to the court were overlooked and might reasonably have resulted in a different conclusion if the court had considered them will the court entertain such a motion. Panna, 760 F. Supp. at 435. It also follows that a change of tactic or a change of counsel, as in this case, cannot be the basis for a reconsideration motion. It would be unfair to the successful party or to the adversary process itself to nullify the earlier hard-fought adjudication merely because new counsel then enters and seeks to craft a different view of the facts or law.
B. Matters Overlooked
In his present motion, plaintiff bases his claim on the assertion that "there are simply issues of material fact with regard to issues stated below which preclude summary judgment." (Pl. Br. at 7). As support, plaintiff submits an affidavit containing new facts or new versions of the facts which were set forth in his original brief. (Morse Aff. at 2-4).
Plaintiff loosely makes three arguments advocating his motion for reargument. First, he suggests that defendants did not believe he had been cheating on October 23, 1990 because it was not reported to the New Jersey Division of Gaming Enforcement (DGE). Second, plaintiff argues that defendants should have known that the Grand Jury had previously refused to indict him on similar cheating charges at the Trump Taj Mahal and that such a dismissal infers that defendants' claims that plaintiff was cheating were without probable cause. Plaintiff's third argument, as defendants' brief in opposition to this motion articulates, remains "unclear."
Plaintiff's points (a) and (b) in support of his motion to reargue his malicious prosecution claim amount to nothing more than the type of arguments for which this Court granted defendants' original motion; namely, plaintiff's arguments are assertions based on his interpretation of the facts and defendants' supporting certifications that attempt to locate material factual disputes through guided inferences. As this Court has already stated, "plaintiff's personal disbelief of defendants' proffered evidence of probable cause is not based on the depositions or affidavits of witnesses, and thus is insufficient to prevent summary judgment." (Opinion and Order at 15). The new affidavit of Morse simply contains more personal beliefs to further argue his own conclusion that defendants lacked probable cause to arrest and prosecute.
In support of his motion to reargue his claim for false arrest, plaintiff incorporates his arguments in support of malicious prosecution and adds arguments to the effect of challenges to defendants' certifications and the security officers' related reports. Plaintiff attempts to raise discrepancies between defendants' certifications and reports to cast doubt upon the credibility of defendants' evidence.
As plaintiff's motion depends upon an untimely affidavit, the resultant introduction of new evidence, and unsupported assertions based on defendants' evidence but not on evidence of his own, the instant claim fails to set forth concisely any matters or controlling decisions which this Court overlooked. Therefore, plaintiff does not satisfy the standard for reargument set forth in the rules of this Court. Accordingly, plaintiff's motion for reargument of this Court's March 27, 2000 Opinion and Order must be denied.
C. Analysis
1. Grounds for Granting Summary Judgment and Context to Which Reargument Motion Must Respond
In its March 27, 2000 Opinion in this case, the Court granted defendants' motion for partial summary judgment against plaintiff's consolidated claims because for each particular claim plaintiff failed to produce evidence beyond the pleadings that demonstrated a genuine material issue of fact. A cognizable claim of malicious prosecution in violation of the Fourth Amendment and 42 U.S.C. § 1983 must establish that defendants acted without probable cause or without malice. Since plaintiff's two convictions, although later overturned, presumptively establish that defendants acted with probable cause, plaintiff's burden at the summary judgment stage was to rebut that presumption with evidence beyond assertions of those charges' dismissal. Similarly, a claim for unlawful arrest under § 1983 requires that a plaintiff establish that he was arrested by a state actor without probable cause. On a motion for summary judgment, defendants as the moving party fulfilled the initial burden of showing that no genuine issue of material fact existed by showing that there was an absence of evidence to support the nonmoving party's case. See Celotex v. Catrett, 477 U.S. 317, 323-25 (1986). See also Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citing Celotex, 477 U.S. 317) ("When [the] nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").
For both claims, plaintiff bore the burden of establishing a material issue of genuine fact to survive defendants' motion for summary judgment. The nonmoving party creates a genuine issue of material fact by providing sufficient evidence to allow a reasonable jury to find for him at trial. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party, here the plaintiff, "may not rest upon the mere allegations or denials of" his pleadings to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). He must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338,341 (3d Cir. 1985); Liberty Lobby, 477 U.S. at 249-50;Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
This Court found that plaintiff did not come forth prior to consideration of the defendants' motion for summary judgment with actual, competent evidence tending to show that defendants did not have probable cause to arrest or detain him. Instead, he offered merely his own personal beliefs in opposition to defendants' supporting affidavits. (Opinion and Order at 14.) In choosing not to conduct discovery and consequently failing to submit even a single affidavit in support of his claims, plaintiff provided this Court absolutely no evidence rebutting the defendants' witnesses' state of mind in accordance with his theory regarding their incredibility. Plaintiff only offered his personal disbelief of defendants' proffered evidence of probable cause unsupported by depositions or affidavits. Consequently, plaintiff fell far short of the necessary standard to avoid summary judgment against his claims.
2. Plaintiff's Grounds for Relief Under L. Civ.R. 7.1(g)
The standard for reargument requires plaintiff to set forth concisely a dispositive factual matter or controlling decision of law which this Court has overlooked in its Opinion and Order granting summary judgment against his claims. See Damiano, 975 F. Supp. at 634; Pelham, 661 F. Supp. at 1065; Egloff, 684 F. Supp. at 1279; Greate Bay, 830 F. Supp. at 831. This Court could grant plaintiff's motion only if plaintiff had revealed facts or a controlling decision that might have reasonably led this Court to a different conclusion, namely, that plaintiff on his pleadings rebutted defendants' affidavits attesting to the existence of probable cause in their arrests and detainments of plaintiff. However, plaintiff fails to raise any factual matters or controlling decisions overlooked by this Court. Therefore, no materiality inquiry is required for disposition of the present motion.
Here, plaintiff provides in the present motion no material facts asserted in consideration of the motion of summary judgment that this Court overlooked in deciding the previous motion. Accompanying his present brief, plaintiff submits his own certified statement and various exhibits. Plaintiff's brief draws upon that statement in its assertions of new and "additional contested facts." In effect, after reviewing an unfavorable ruling based on the submissions the court had before it, plaintiff attempts to introduce new evidence into this proceeding to argue that this Court's Opinion and Order were incorrect. Additionally, plaintiff's brief neglects the standard for reargument and any discussion or application of L. Civ.R. 7.1(g) to his case.
First, the introduction of new evidence falls outside the scope of L. Civ.R. 7.1(g) and renders a claim based on such ineffective. The Rule does not contemplate a Court looking to matters which were not originally presented. Florham Park Chevron, 680 F. Supp. at 162. Thus, a party "must show more than a disagreement with the court's decision." Panna, 760 F. Supp. at 435. Recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden. Shushan, 721 F. Supp. at 709.
The strong policy in Local Civil Rule 7.1(g) against entertaining reargument motions based on evidence that was readily available at the time that the original motion was heard permits the court, in its discretion, to refuse to consider such evidence. See Florham Park Chevron, 680 F. Supp. at 162-63.
It is recognized that new evidence may be received in a reconsideration motion if it is recently discovered, such as where there has been insufficient time to complete discovery or where a party has withheld the evidence from timely production in discovery. This reinforces the proposition that summary judgment should only be entered on the ground that the nonmovant's proof is insufficient when the nonmovant has had an adequate opportunity to conduct discovery. See Celotex, 477 U.S. at 322. The court should not permit the nonmoving party to be "railroaded" by a premature motion for summary judgment. Id., at 326. The Supreme Court has indicated that "[a]ny potential problem with such premature motions can be adequately dealt with under Rule 56(f), . . . if the nonmoving party has not had an opportunity to make full discovery." Id. None of these special circumstances is present here.
In this case, which has been open — in various forms — for some six years, plaintiff had more than adequate opportunity to conduct discovery. Yet, he did not avail himself of such opportunity despite an extended time in which to do so. Even as consideration of defendants' motion for summary judgment neared, plaintiff had the further opportunity to enter a request to delay adjudication of the summary judgment motion pending his opportunity for additional discovery under F. R. Civ. P. 56(f). He again did not take advantage of such a chance. A party may not submit evidence for the first time on reconsideration which was available to it prior to the issuance of the challenged order. See Smith v. City of Chester, 155 F.R.D. 95, 97 (E.D.Pa. 1994). Therefore, plaintiff's introduction of his own certified statement during this proceeding remains ineffective in light of L. Civ.R. 7.1(g) and given his abundance of prior opportunity to produce that and other evidence which may well have allowed his claim to survive summary judgment.
In the face of this District's jurisprudence recounted above, plaintiff may have cited Panna for the proposition that this Court may still consider evidence offered for the first time on a motion for reargument if doing so might lead to a different result than was reached originally. See Panna, 760 F. Supp. at 435, cited with approval in Elizabethtown Water Co. v. Hartford Casualty Insurance Co., 18 F. Supp.2d 464 (D.N.J. 1998). However, the word "overlooked" is the operative term in L. Civ.R. 7.1(g) and it has been interpreted consistently as referring only to facts and legal arguments properly presented to the Court at the time the motion on which reargument is sought was initially decided.
Efforts to expand the record on reargument to matters not originally before the Court but submitted after the motion was decided have been soundly rejected. Judge Orlofsky noted in Polizzi Meats, Inc. v. Aetna Life Casualty Co., 931 F. Supp. 328, 339 (D.N.J. 1996), that General Rule 12I [now L. Civ.R. 7.1(g)] explicitly invites counsel to draw the court's attention to decisions which may have been overlooked by the court, not those which were overlooked by counsel. The late Chief Judge Gerry flatly rejected any effort to submit new evidence, adamantly holding: "[T]his position is without foundation, either in the language of [the rule] itself or in the vast majority of the interpretative cases of this court. We are in fact bound not to consider such new materials, lest the strictures of our re[argument] rule erode entirely." Greate Bay, 830 F. Supp. at 831 n. 3 (emphasis in original). See also Damiano, 975 F. Supp. at 635 ("Neither L. Civ.R. 7.1(g), nor any known concept of jurisprudence, permits a party to generate new expert opinions and offer them, after the fact, as evidence that the court had somehow overlooked."); Tischio v. Bontext, Inc., 16 F. Supp.2d 511, 535 (D.N.J. 1998) ("[a party] cannot withhold data or detail in connection with the [original] Motion . . ., wait for a decision on that motion and then attempt to dissect the decision and submit information which should have been presented earlier."); Lentz v. Mason, 32 F. Supp.2d 733, 751 (D.N.J. 1999) (denying motion based on newly discovered evidence where moving parties "do not provide any reason for their failure to discover this information earlier and to include it in their memorandum. . . .").
In Florham Park Chevron, a motion for reargument of the grant of summary judgment to plaintiffs was denied where defendant focused in its memorandum on nine items, only one of which had been presented to the Court when the motion was argued. Judge Wolin held that the rule does not contemplate a Court looking to matters which were not originally presented but which have since been provided for consideration. 680 F. Supp. at 162. See also Pittston Co. v. Sedgwick James, Inc., 971 F. Supp. 915 (D.N.J. 1997) (holding the same). Plaintiff's arguments in support of his motion for reargument approximate Florham Park Chevron in that his brief focused upon twelve "Statement[s] of Additional Facts," only three of which address some facts contemplated in the original motion for summary judgment. The remaining nine points, all drawn from plaintiff's tardy affidavit, attempt to introduce new facts into the record, or construe facts as determined by defendants' supporting affidavits in accordance with plaintiff's individual theories about events.
Paragraphs two, three, and eight of plaintiff's brief address facts included in the original motion for summary judgment. However, the facts noted in those paragraphs were properly before this Court and were neither overlooked nor constructed any reasonable basis to conclude in the alternative on defendants' motion for summary judgment.
Paragraphs two and three note a discrepancy in the reports of the security officers and casino staff as to why plaintiff was taken into custody by defendants on February 19, 1992 and March 26, 1992. The facts plaintiff cites in paragraphs two and three do not sustain his burden for reargument in proving that defendants acted maliciously or for a purpose other than that dictated by law. In short, those facts are immaterial and were considered such in this Court's previous opinion. In paragraph eight, plaintiff notes that Joseph Procopio's certification does not claim that Morse shoved or hit him, merely that he asked Mr. Procopio to settle their dispute "outside." However, such a statement, as defendants sensibly suggest, coupled with the disturbance which Morse had created establish a sufficient basis for a claim of harassment and disorderly person. In other words, any discrepancy does not regard a "material" issue as required by Rule 56, Fed.R.Civ.P.
Given the inadequacy of paragraphs two, three, and eight in carrying plaintiff's motion for reargument, the remainder of his claim amounts to a rearguing itself; asserting legal arguments claiming that this Court's contested conclusion was incorrectly decided. A motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised in connection with an earlier motion. See Bermingham, 820 F. Supp. at 856; Weyerhaeuser Corp. v. Koppers Co., 771 F. Supp. 1406, 1419 (1991). "[A] motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple." In re Christie, 222 B.R. 64, 66 (Bankr.D.N.J. 1998) (citing Database America, Inc. v. Bellsouth Advertising Publishing Corp., 825 F. Supp. 1216, 1220 (D.N.J. 1993). When a motion for reargument raises only a disagreement by a party with a decision of the court, that dispute "should be dealt with in the normal appellate process, not on a motion for reargument" pursuant to Local Rule 7.1(g).Database, 825 F. Supp. at 1220; Florham Park Chevron, 680 F. Supp. at 163; Bermingham, 820 F. Supp. at 856. Essentially, plaintiff puts forth legal arguments, drawn from his own certified statement which are improper in a motion for reargument. Plaintiff's motion for reargument of this Court's decision granting summary judgment against plaintiff's claims for malicious prosecution and false arrest will be denied.
Conclusion
For the reasons stated above, plaintiff's motion for reargument of this Court's March 27, 2000 Opinion and Order granting summary judgment against his claims of malicious prosecution and false arrest pursuant to L. Civ.R. 7.1(g) will be denied, plaintiff having failed to set forth any factual or legal matters overlooked in this Court's Opinion dated March 27, 2000.
ORDER
THIS MATTER having come before the Court on motion of Plaintiff David H. Morse for reargument of this Court's March 27, 2000 Opinion and Order in this case pursuant to Local Civil Rule 7.1(g), and this Court having considered the submissions of the parties, and for the reasons discussed in the Opinion of this date;
IT IS this day of June, 2000
ORDERED that defendant's motion for reargument be, and hereby is, DENIED.